Intelligence Authorization Acts: Their Impact on the Intelligence Community

Abstract

Intelligence Authorization Acts (IAAs), generally passed annually since the late 1970s, are an important tool for Congress to influence the direction of the Intelligence Community (IC). They direct the organizing or reorganizing of IC elements, assign or reassign functions, grant or repeal authorities, prohibit certain actions, establish priorities, require the delivery of reports or briefings, call for notifications, authorize the appropriation of funds, or specify many other activities to improve the effectiveness of U.S. intelligence. This article provides a survey of the IAAs since they were first enacted, highlights key direction to the IC, and shows that they were usually enacted in response to national security issues arising at the time. It also identifies important trends and concludes with a look at the future of IAAs.

Notes

1 The SSCI was established per S. Res 400 on 19 May 1976. The HPSCI was established on 14 July 1977 per H. Res. 658.

2 These required reports or briefings, called Congressionally Directed Actions (CDAs), are meticulously tracked and addressed by the affected IC elements, although they are not always delivered by the due date specified in the laws. CDAs are also included in other laws, especially National Defense Authorization Acts (NDAAs) and Defense Appropriations Acts, but they are outside the scope of this article.

3 U.S. Senate, “Legislative Oversight of Intelligence Activities: The U.S. Experience” (S. PRT 103-88, Washington, DC: Senate Select Committee on Intelligence, October 1994), p. 17.

4 Two valuable books that discuss early Intelligence Authorization Acts as part of an overall discussion of congressional/IC relations are: Frank J. Smist, Jr., Congress Oversees the United States Intelligence Community, 1947–1994, 2nd ed.  (Knoxville: University of Tennessee Press, 1994), and Britt Snider, The Agency and the Hill—CIA’s Relationship with Congress, 1946–2004 (Washington, DC: Center for the Study of Intelligence, 2008). Chapter 5, entitled “Legislation,” is particularly relevant to this article. The HPSCI thought so highly of the latter book, it directed in its draft FY23 IAA (H.R. 8367) that the CSI prepare an update through 2022 using the same organizational structure as in the original book. That provision was not included in the final FY23 IAA.

5 For example, Amy B. Zegart, “The Domestic Politics of Irrational Intelligence Oversight,” Political Science Quarterly, Vol. 126, No. 1 (2011), pp. 1–25; Loch K. Johnson, “Accountability and America’s Secret Foreign Policy: Keeping a Legislative Eye on the Central Intelligence Agency,” Foreign Policy Analysis, Vol. 1, No. 1 (2005), pp. 99–120; Gary J. Schmitt, “Congressional Oversight of Intelligence,” Studies in Intelligence, Vol. 29, No. 1 (1985), pp. 17–43.

6 James M. McCormick and Steven S. Smith, “The Iran Arms Sale and the Intelligence Oversight Act of 1980,” PS, Vol. 20, No. 1 (1987), pp. 29–37.

7 William E. Connor, Intelligence Oversight: The Controversy behind the FY1991 Intelligence Authorization Act (McLean, VA Association of Former Intelligence Officers, 1993).

8 https://www.intelligence.senate.gov/publications/reports

9 Activity reports are available on www.congress.gov for the 105th, 106th, 112th, 113th, 114th, and 115th Congresses. The 105th Congress convened in 1997–1998; the 115th Congress convened in 2017–2018.

10 The Church Committee was formally called the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. The Pike Committee was formally called the House Select Committee on Intelligence.

11 In the Iran-Contra Affair, officials from the National Security Council arranged for the sale of weapons to Iran in exchange for the release of U.S. hostages in Lebanon. Proceeds of the sale were used to fund the antigovernment Contras in Nicaragua, which Congress had restricted or prohibited in various laws, including IAAs.

12 Intelligence Events Timeline—1985, https://www.cia.gov/legacy/museum/fourteen-americans-are-arrested-and-or-convicted-of-spying-for-the-soviet-union-and-its-allies-as-well-as-for-israel-china-and-ghana/ (accessed 6 May 2023).

13 The acts for FY79 and FY80 were called the Intelligence and Intelligence-Related Activities Authorization Act; thereafter, each act was called the Intelligence Authorization Act.

14 In his signing statement of the FY81 IAA, President Carter acknowledged the codification of congressional oversight by stating the legislation establishes “for the first time in statute, a comprehensive system for congressional oversight of intelligence activities.” He also noted that it “will help to ensure that U.S. intelligence activities are carried out effectively and in a manner that respects individual rights and liberties.”

15 This was superseded by President Reagan’s EO 12333, which, although amended by President George W. Bush’s EO 13470, still remains in force.

16 Section 602 of the FY91 IAA expanded the list of those responsible to keep the intelligence committees “fully and currently” informed to include the president.

17 These leaders include the majority and minority leaders of the Senate, speaker and minority leader of the House, and chairman and vice chairman/ranking member of the SSCI and HPSCI. They are colloquially called the “Gang of Eight,” although the law does not use that term.

18 The Hughes-Ryan amendment is contained in Section 32 of the Foreign Assistance Act of 1974 (P.L. 93-559), which amends the Foreign Assistance Act of 1961 (P.L. 87-195). It was the first effort by Congress to limit the conduct of covert action (i.e., described in law at that time as “operations in foreign countries, other than activities intended solely for obtaining necessary intelligence”). It directed that no funds could be expended on covert action unless the president issued a finding that the operation is important to the national security of the United States. Congress became more interested in covert action since September 1973, when Chile’s democratically elected President Allende was overthrown and died in a military coup, and the CIA was alleged to have been involved.

19 U.S. Senate, “Legislative Oversight of Intelligence Activities,” p. 4. Some authors also include the two judiciary committees, for a total of eight committees considered “appropriate” because the resolutions establishing the two intelligence committees stipulated that the committees include some members who also sit on these eight committees.

20 For FY84-FY90, the respective sections are: 108/109, 801, 105, 106, 104, 104, and 104.

21 In his signing statement for the FY85 IAA, President Reagan lamented, “I sincerely regret the inability of the Congress to resolve the issue of continuing certain activities in Nicaragua that are important to achieving U.S. policy objectives.” In the signing statement for the FY86 IAA, he expressed his disappointment that the law “mandates reporting requirements that are best left to working arrangements and guidelines agreed to by the Congress and the Director of Central Intelligence.”

22 Section 601.

23 Section 402.

24 Section 702.

25 In his signing statement, President Reagan stated, “I must express my view that section 501 of the bill is unconstitutional. … I will instruct the Attorney General not to submit an annual report to the Congress pursuant to section 501.”

26 Section 406. Section 501 of the FY98 IAA authorized the then-named Joint Military Intelligence College to confer the degree of Bachelor of Science in Intelligence.

27 Section 401. It added a Section 502 to the National Security Act of 1947 (P.L. 80-253; 50 U.S.C. 413) entitled Funding of Intelligence Activities. The number of Section 502 was changed to Section 504 per Section 602 of the FY91 IAA, which is the more commonly understood section number directing that appropriations must be authorized.

28 Section 504.

29 In practice, intelligence elements have generally allowed their respective IGs to have a direct line of communication with congressional oversight committees.

30 Section 702.

31 The duties of this individual were transferred to the under secretary of defense for intelligence (USD (I)), which was established by Section 901 of the FY03 NDAA (P.L. 107-314). Unlike the ASD C3I, the USD (I) was subject to confirmation by the Senate. The portfolio of the USD (I) was expanded by Section 1621 of the FY20 NDAA (P.L. 116-92) to include security, and the position was renamed USD (I&S).

32 World Trade Center Bombing 1993, https://www.fbi.gov/history/famous-cases/world-trade-center-bombing-1993 (accessed 5 May 2023).

33 East African Embassy Bombings, https://www.fbi.gov/history/famous-cases/east-african-embassy-bombings (accessed 5 May 2023).

34 Aldrich Ames, https://www.fbi.gov/history/famous-cases/aldrich-ames (accessed 5 May 2023).

35 Section 801.

36 Snider, The Agency and the Hill, p. 147.

37 In a lengthy signing statement, President Bush explained his reservations with this title, particularly the IG’s reporting requirements. He concluded with this caveat: “I therefore shall interpret this and similar provisions consistently with my constitutional authority to withhold information that would compromise national security or the deliberative processes of the executive branch.”

38 Section 403.

39 Section 402.

40 U.S. House of Representatives and U.S. Senate, “Report of the Congressional Committees Investigating the Iran-Contra Affair” (S. Rpt. 100-216; H. Rpt. 100-433, House Select Committee to Investigate Covert Arms Transactions with Iran and Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, Washington, DC, 1987).

41 Snider, The Agency and the Hill, p. 68. In addition, President Bush indicated in a letter of 30 October 1989 to the intelligence committees that “in those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days.” Quoted in Connor, Intelligence Oversight, p. 30.

42 Section 331 of the FY10 IAA further modified notification requirements and included factors the president should consider when determining whether an activity is significant and requires notification.

43 Section 602. Inserted as Section 503(e) in the National Security Act of 1947.

44 Section 601.

45 In his confirmation hearing to become the director of central intelligence, James Woosley stated, “We have slain a large dragon, but we live now in a jungle filled with a bewildering variety of poisonous snakes. And in many ways the dragon was easier to keep track of.” U.S. Senate, “Nomination of James R. Woolsey”. S. Hrg. 103-296, Senate Select Committee on Intelligence, Washington DC, 2–3 February 1993), p. 76.

46 Section 702.

47 Section 1074 of Intelligence Reform and Terrorism Prevention Act (IRTPA) (P.L. 108-458) changed the name of this program to the National Intelligence Program (NIP).

48 In a memorandum of 1 September 2005, the Department of Defense designated the name of intelligence supporting tactical military operations as the Military Intelligence Program (MIP).

49 Section 703.

50 Section 704.

51 Section 705.

52 Section 706. Section 808 of the FY97 IAA augmented these responsibilities by directing that the DCI, in consultation with the secretary of defense and chairman of the Joint Chiefs of Staff, submit a report to the National Security Council on “performance and the responsiveness of the National Security Agency, the National Reconnaissance Office, and the National Imagery and Mapping Agency in meeting their national missions.”

53 In his first signing statement of an IAA, President Clinton commented on these new positions: “I share his [DCI’s] concerns that these provisions will add another layer of positions requiring Senate confirmation without a substantial corresponding gain in the DCI’s authority or ability to manage the Intelligence Community.” The Community Management Staff was transferred to the Office of the DNI per Section 1091 of the IRTPA (P.L. 108-458) and the three assistant director positions were eliminated per Section 1093.

54 Section 815.

55 Section 701. President Clinton issued EO 12958, entitled Classified National Security Information, on 17 April 1995. It was amended by EO 13292 on 25 March 2 2003 and superseded by EO 13526 on 29 December 2009.

56 Section 802. President Clinton signed EO 12968, entitled Access to Classified Information, on 2 August 1995.

57 Section 803.

58 Section 807.

59 Section 314.

60 Section 601. The SSCI had previously held an open hearing on 10 August 1994 to review the process NRO used to secure funding and approval to build a new headquarters facility. The existence of NRO had been declassified on 18 September 1992 per memorandum 264-M from the deputy secretary of defense.

61 Walter Pincus, “By Cloaking Building, NRO Gets What It Wanted to Avoid: Attention,” Washington Post, 10 August 1994, https://www.washingtonpost.com/archive/politics/1994/08/10/by-cloaking-building-nro-gets-what-it-wanted-to-avoid-attention/ef017a3a-03fa-4b89-aad8-1ba7f4a1136b/ (accessed 5 January 2023).

62 Section 602. This amount was increased to $5 million per Section 314 of the FY04 IAA and to $6 million per Section 305 of the FY22 IAA.

63 Section 311.

64 Walter Pincus, “Spy Agency Hoards Secret $1 Billion,” Washington Post, 24 September 1995, https://www.washingtonpost.com/archive/politics/1995/09/24/spy-agency-hoards-secret-1-billion/7857e132-1b9d-40ba-8ca5-976d09beb10b/ (accessed 5 January 2023).

65 Section 501.

66 Section 304.

67 This second requirement is similar to the FY21 IAA requirement to prepare an annual threat assessment, discussed below.

68 Section 803.

69 Section 347.

70 The commission, informally called the Aspin-Brown Commission, named after the former secretaries of defense who successively chaired the commission, published its report, entitled Preparing for the 21st Century: An Appraisal of U.S. Intelligence, on 1 March 1996.

71 Section 308.

72 Section 309.

73 The commission, informally called the Deutch Commission, was named after the former DCI who chaired the commission. On 14 July 1999, it delivered to Congress a report entitled Report of the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction.

74 Section 309. George H. W. Bush was the only DCI who was elected president of the United States. He served as DCI from January 1976 to January 1977 and as president from January 1989 to January 1993.

75 Section 357 of the FY04 IAA directed that the DCI prepare a report on lessons learned on intelligence support to this military operation called IRAQI FREEDOM and provide recommendations for improvement. Because the law did not call for an unclassified report, it undoubtedly was classified, especially given the nature of the topic. In addition, from 2004 to 2008, the SSCI conducted six studies on intelligence and Iraq. Similarly, President Bush issued EO 13328 on 6 February 2004, which established the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. This commission, known as the Robb-Silberman Commission, was named after its cochairs, former Senator Robb and former judge Silberman. It delivered its report on 31 March 2005.

76 Anne Daugherty Miles, “Intelligence Authorization Legislation for FY2014 and FY2015: Provisions, Status, Intelligence Community Framework” (R43793, Washington, DC: Congressional Research Service, 12 January 2016), pp. 5–6.

77 Section 106.

78 Section 105.

79 Section 802.

80 Section 803.

81 John Negroponte was confirmed by the Senate as the first DNI on 21 April 2005. Porter Goss, the DCI at that time, received a new title as director of the Central Intelligence Agency.

82 The FY05 IAA was signed on 23 December 2004; the FY10 was assigned on 7 October 2010 after the end of the fiscal year. Hence, almost six years elapsed between the signing of both IAAs, even though IAAs for only four fiscal years were not passed.

83 Richard A. Best, Jr., “Intelligence Authorization Legislation: Status and Challenges” (R40240, Washington, DC: Congressional Research Service, 24 February 2009), p. 1.

84 Section 341.

85 Section 343.

86 The commission was chaired by the former governor of New Jersey, Thomas Kean; the vice chair was Lee Hamilton, former chair of the House Foreign Affairs Committee and the HPSCI. The commission published its report, entitled The 9/11 Commission Report, on 22 July 2004. Ironically, an earlier law established another commission to study terrorism, which released its report more than a year before the 9/11 attacks. Section 591 of the 1999 omnibus appropriations act (P.L. 105-277) established the National Commission on Terrorism, also called the Bremer Commission, named after the chairman, Ambassador Paul Bremer. The commission released its report, entitled Countering the Changing Threat of International Terrorism, on 7 June 2000.

87 The HPSCI and SSCI conducted a joint investigation into 9/11 and published their report in December 2002 (S. Rept. 107- 351; H. Rept. 107-792), entitled Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001.

88 Section 310 of the FY22 IAA directed the IC to review information related to 9/11 and appropriately declassify and release it to the public.

89 Section 310. The attorney general complied with this provision by writing a letter to the speaker of the House and president of the Senate on 15 October 2002 that included findings, assessment, and recommendations.

90 The commission, cochaired by former SSCI Vice Chairman Kerrey (D-NE) and HPSCI Chairman Goss (R-FL), issued its final report, entitled NRO at the Crossroads, on 1 November 2000. In his signing statement, President Clinton suggested that this commission “coordinate its review and findings of mutual interest with the Commission to Assess U.S. National Security Space Management and Organization [informally called the Rumsfeld Commission named after the chairman, the former secretary of defense] established by [Section 1621 of] the FY00 National Defense Authorization Act (P.L. 106-65).”

91 Section 502.

92 Section 504.

93 Section 313. Section 304 of the FY05 IAA added to the center’s authorities.

94 Section 105.

95 “The Operation That Took Out Osama Bin Laden,” https://www.military.com/history/osama-bin-laden-operation-neptune-spear (accessed 5 May 2023).

96 Most Wanted Terrorist: Ayman al-Zawahiri, https://www.defense.gov/Multimedia/Photos/igphoto/2003048422/ (accessed 5 May 2023).

97 The IAA for FY20 was contained in Subdivision 1 of Division E, and the combined IAAs for FY18 and FY19 were contained in Subdivision 2.

98 From FY62 to FY23, Congress passed and the president signed 62 consecutive NDAAs.

99 Section 306.

100 Section 306.

101 Section 6605.

102 Section 501.

103 Section 6706 of the FY18/19 IAA expanded the committee’s scope to include foreign influence by China, Iran, and North Korea.

104 Section 502.

105 Section 6506.

106 Section 6703.

107 Section 5322.

108 Section 6307 of the FY23 IAA removed the word “response” from the name of the organization.

109 Section 5323.

110 Section 815.

111 The DNI formally notified appropriate congressional leaders on 28 September 2022 that the Foreign Malign Influence Center was established effective 23 September 2022.

112 Section 402. This program obviously did not prevent NSA contractor Edward Snowden from leaking extensive classified information in June 2013. Snowden identified himself as the source of the leaks. See Barton Gellman, Aaron Blake, and Greg Miller, “Edward Snowden Comes Forward as Source of NSA Leaks,” Washington Post, 9 June 2013, https://www.washingtonpost.com/politics/intelligence-leaders-push-back-on-leakers-media/2013/06/09/fff80160-d122-11e2-a73e-826d299ff459_story.html (accessed 5 January 2023).

113 Both dates were postponed by one year by Section 304 of the FY13 IAA.

114 Section 313.

115 Section 512 of the FY16 IAA imposed the same requirement on diplomatic facilities in Cuba.

116 Section 314.

117 Section 513 of the FY16 IAA imposed the same requirement on diplomatic facilities built or upgraded in Cuba.

118 Section 401.

119 Section 608.

120 Section 6747.

121 Section 6318.

122 Section 405.

123 The only signing statement that President Obama issued to accompany an IAA was the one for FY10. He reiterated that “in accordance with long-standing executive branch policy, my Administration understands that the requirement that IGs make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information.”

124 Section 309.

125 Sections 501 (Harmonization of Whistleblower Protections) and 502 (Authorities Regarding Whistleblower Complaints) of the FY22 IAA further enhanced protection for whistleblowers.

126 Section 605.

127 Section 6433.

128 However, the intelligence element of the Space Force became the eighteenth member of the IC in January 2021 per an agreement between the DNI and the chief of space operations per ODNI Press Release 03-21 dated 8 January 2021. The inclusion of the Space Force in the IC was codified in law per Section 6421 of the FY23 IAA.

129 Section 954.

130 Section 811.

131 Section 606.

132 Section 401.

133 It was established by Section 1022 of the IRTPA (P.L. 108-458).

134 Section 821.

135 U.S. Senate, “Report of the Select Committee on Intelligence, United States Senate, Covering the Period January 4, 2019 to January 3, 2021” (S. Rpt. 117-02, Washington, DC: Senate Select Committee on Intelligence, 23 March 2021), p. 5.

136 According to Bob Gates, one of the former DCIs who testified at the worldwide threat hearings before the position of DNI was established, worldwide threat hearings had been held upon request since at least 1980. See Robert Gates, From the Shadows, the Ultimate Insider’s Story of Five Presidents and How They Won the Cold War (New York, Simon and Schuster, 1996), p. 171. Some consider these hearings to be the “Super Bowl of hearings” for the intelligence committees.

137 The first exception took place in 1999, when the hearing was suspended due to the Senate impeachment trial. However, the Senate Armed Services Committee did hold a worldwide threat hearing with IC leaders that year. Neither an open nor closed hearing took place in 2020, the second exception, according to the Senate report mentioned above, because of “scheduling conflicts, sustained assertions of witness unavailability, and an apparent general reluctance by Administration officials to appear before the Committee to discuss publicly intelligence threat Assessments.”

138 Section 332.

139 Section 414.

140 Section 313.

141 Section 303.

142 Section 5324.

143 Transferred on 20 June 2021 according to ODNI News Release 21-21, dated 21 June 2021.

144 Section 5321.

145 Section 401.

146 Section 6316. Similar direction was contained in Section 310 of the FY17 IAA; however, it required the DNI and not the president to provide the White House documents. This section was repealed by the FY23 IAA. President Biden objected to this section in the FY23 IAA in his signing statement. He stated, “Section 6316 of the Act is unconstitutional to the extent it imposes requirements for access to those communications beyond those already present under existing law. I will commit to complying with its disclosure requirements only in such cases where a committee has a need for such Presidential communications.”

147 Section 6402.

148 SSCI reports can be found at https://www.intelligence.senate.gov/publications/reports. HPSCI reports can be found at www.congress.gov

Additional information

Notes on contributors

Mark A. Jensen

Mark A. Jensen serves as a Legislative Liaison Officer in the Office of the Director of National Intelligence (ODNI). He has worked at various positions in ODNI since it stood up in 2005, including as a Senior Analyst/Editor at the National Intelligence Council. He previously taught courses on Congress and Intelligence, the History of Intelligence, and Intelligence and National Security Policy, among others at what is now called the National Intelligence University. Mr. Jensen retired from the Army Reserve and also served in the Utah and Oregon Army National Guards and on active duty at Ft. Bragg, North Carolina. He earned a bachelor’s and a master’s degree in accounting from Brigham Young University and a master’s degree in strategic intelligence from the Joint Military Intelligence College. He also earned a certificate in Legislative Studies from the Government Affairs Institute at Georgetown University and is a graduate of the Air War College. The author can be contacted at [email protected].